MUNICIPAL COMMISSIONERS HOWRAH Vs. FUL CHAND AGARWALLA

JUDGEMENT

(1.) This Rule was obtained by the Commissioners of the Howrah Municipality against an appellate order of acquittal. The facts giving rise to this Rule may be briefly stated as follows: The accused opposite party runs a wheat grinding mill in premises No. 421 Grand Trunk Road, Howrah. He took out a licence for running the mill under the provisions of Section 386 of the Calcutta Municipal Act as extended to Howrah for the year 1951-52 and that license was to expire on 31-3-1952. Some time in the year 1951 a co-tenant of the accused opposite party made a complaint to the Municipality alleging that the noise and vibration created by the running of the mill constituted a nuisance in the locality. On 6-12-1951 the Chairman of the Howrah Municipality informed the said complainant that the Chairman would hold a local inspection. On 24-4-1952 the Chairman with the Health Officer and the Sanitary Inspector inspected the premises and came to the conclusion that the licence should not be renewed for the year 1952-53 because the complaint made by the accused person's co-tenant was true. On 30-4-1952 the accused opposite party was informed of the Chairman's order and asked to close the shop within a fortnight. On 12-6-1952 the Chairman ordered the Sanitary Inspector to inspect the locality again to see whether the shop was closed. On 17-6-1952 the Sanitary inspector inspected the locality and found that the accused opposite party was still running his mill without a licence. Accordingly on 8-7-1952 a complaint was filed against the accused opposite party under Section 488/i 386 of the Calcutta Municipal Act, as extended to Howrah.

(2.) The defence of the accused opposite party was that he had taken out a licence under Section 388 of the Act for the year 1951-52 and that he applied for renewal of the licence and was willing to pay the licence fee for the year 1952-53 but that defence was given up and the accused opposite party contended that a licence under Section 388 once granted continued to be valid till it was revoked or suspended under the provisions of Section 498 of the Calcutta Municipal Act, as extended to Howrah.

(3.) The trial court overruled the defence and convicted the accused opposite party and sentenced him to pay a fine of Rs. 150/- and costs -/8/- as., in default to simple imprisonment for one month. Against the order of the trying Magistrate the accused opposite party filed an appeal and the appellate court upheld the contention of the accused opposite party and made an order of acquittal on the ground that the licence under Section 386 was not limited to any particular period and it remained in force till it was suspended or revoked by the Municipal Authorities, Against the appellate order of acquittal the Commissioners of the Howrah Municipality moved this court under Section 439, Criminal P. C. which gave rise to Criminal Revision Case No. 1133 of 1953. This Revision Case was heard over a Bench consisting of Mitter and Sen, JJ. Both of them held that the decision of the appellate court to the effect that the licence granted under Section 386 remained valid till it was revoked was wrong but before the Division Bench the accused opposite party for the first time raised a question that in the circumstances of the present case the prosecution was barred under the provisions of Section 534 of the Calcutta Municipal Act. Mitter, J. held in favour of the accused opposite party on that point but Sen, J. held that the prosecution was not barred. The result was that according to the Judgment of Mitter, J. the rule should be discharged though on a ground different from that which was given by the court of appeal below, but Sen, J. came to the conclusion that the rule should be made absolute and the order of acquittal should be set aside. On account of this difference of opinion between Mitter and Sen, JJ. on the question of limitation the case has been placed before me by an order of the Hon'ble the Chief Justice.